Citation NR: 9700200
Decision Date: 01/03/97 Archive Date: 02/03/97
DOCKET NO. 94-48 606 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to service connection for residuals of a jaw
injury.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Andrew E. Betourney, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1958 to July
1961.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a June 1994 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio, which denied the veteran’s claim for
entitlement to service connection for residuals of a jaw
injury. The veteran filed a timely appeal to this adverse
determination.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that the RO was incorrect in
denying him the benefit sought on appeal. In support of this
contention, he maintains that he was injured in service when
he was struck in the side of the face with a pool cue, and
has suffered from headaches and problems with his left ear
and the left side of his head, to include his jaw, since that
time.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not met his
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that his claim for
service connection for residuals of a jaw injury is well
grounded.
FINDING OF FACT
The claim of entitlement to service connection for residuals
of a jaw injury is not supported by cognizable evidence
demonstrating that the claim is plausible or capable of
substantiation.
CONCLUSION OF LAW
The veteran’s claim for service connection for residuals of a
jaw injury is not well grounded. 38 U.S.C.A. § 5107 (West
1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Before evaluating the merits of the veteran’s claim at issue,
the initial question to be answered is whether he has
presented evidence sufficient to establish a well-grounded
claim. In this regard, the veteran has “the burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim is well grounded;”
that is, the claim must be plausible or capable of
substantiation. See 38 U.S.C.A. § 5107(a) (West 1991);
Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). If the
evidence presented by the veteran fails to meet this
threshold level of sufficiency, no further legal analysis
need be made as to the merits of his claims.
The United States Court of Veterans Appeals (Court) has
repeatedly stated that U.S.C.A. § 5107(a) places an initial
burden on a claimant to present evidence that his claim is
well grounded. See Grivois v. Brown, 6 Vet.App. 136, 139
(1994); Grottveit v. Brown, 5 Vet.App. 91, 92 (1993); Tirpak
v. Derwinski, 2 Vet.App. 609, 610-11 (1992). When the
determinative issue in the veteran’s appeal involves
questions of medical causation or a medical diagnosis,
competent medical evidence that the claim is plausible is
required. Grottveit, 5 Vet.App. at 92-93.
Furthermore, in order for a claim to be considered plausible,
i.e., well grounded, there must be evidence of both a current
disability and evidence of a relationship between that
disability and an injury or disease incurred in service or
some other manifestation of the disability during service.
Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992); Cuevas v.
Principi, 3 Vet.App. 542, 548 (1992); LeShore v. Brown, 8
Vet.App. 406, 408 (1995).
A review of the veteran’s service medical records reveals
that they are silent as to any complaint, treatment, or
diagnosis of an injury to his left jawbone.
The veteran underwent a VA examination in February 1995.
Clinical evaluation at that time revealed a normal left
eardrum. The veteran was noted to be wearing a small hearing
aid in the left ear. The jaw was not deformed, and the
veteran was able to open his mouth without difficulty. The
physician reading the veteran’s x-ray results found the
veteran’s facial bones to be normal, and he could not
recognize the area where there was trauma in the past. The
examiner diagnosed symptomatic residuals of blow to left side
of jaw, and commented that he could not detect any objective
residuals of the injury.
The veteran also testified in October 1996 at a hearing
before a member of the Board of Veterans’ Appeals. At that
time he restated his contention that he had suffered an
injury in service, which was causing residuals to include
clicking of the jaw when chewing and headaches. The veteran
identified the injury as occurring “right around the center
of the ear, right where the hearing is located at.” He also
reported having been treated for the injury shortly after the
accident by a private physician in his hometown. However, he
stated that this physician was deceased and that his office
had closed. He was unable to provide any new address from
which these records might be requested.
The veteran also testified at the hearing that he told Dr.
Gergess at the VA hospital in Dayton, Ohio, about the
incident that had happened in service. The veteran stated
that Dr. Gergess said his current problem with his jaw “could
be caused by your old injury.” However, the Board points out
that there is no documentation in the service medical records
or on the post service medical examinations of any residuals
of an old injury to his jaw. In other words, the veteran is
mistaken in believing that he suffered an injury to his jaw
in service. It is fair to say that if he had suffered as
substantial injury to his jaw, one causing disability so many
years later, evidence of the old injury would show up on a
medical examination.
A review of the evidence indicates that there is nothing in
the claims file, other than the veteran’s contentions, which
would tend to establish a medical linkage between any current
left jaw disorder and an injury incurred during service. As
the veteran is not a medical expert, he is not competent to
express an authoritative opinion regarding the medical
etiology of his current jaw problems. Espiritu v. Derwinski,
2 Vet.App. 492 (1992). See also Heuer v. Brown, 7 Vet.App.
379, 384 (1995), citing Grottveit, in which the Court held
that an appellant does not meet his burden of presenting
evidence of a well-grounded claim where the determinative
issue involves medical causation and the appellant presents
only lay testimony by persons not competent to offer medical
opinions. Thus, the Board finds that the veteran’s
contention that his left jaw problems are related to an
injury incurred while in service cannot be deemed competent
evidence.
Therefore, given the lack of competent evidence establishing
that his claim is plausible, the Board determines that the
veteran has not met his initial burden of submitting evidence
sufficient to establish that his claim to entitlement to
service connection for residuals of a jaw injury is well
grounded.
In finding the veteran’s claim not well grounded it is
recognized that the Board is acting in a manner different
than the RO, which denied service connection based on a
merits-based review. It must therefore be considered whether
the claimant has been given adequate notice to respond, and
if not, whether he has been prejudiced thereby. Bernard v.
Brown, 4 Vet.App. 384 (1993). In light of the implausibility
of the appellant’s claim and her failure to meet her initial
burden in the adjudication process, however, the Board
concludes that he has not been prejudiced by the decision to
dismiss his claim. Indeed, in finding his claim well
grounded the RO accorded him greater consideration than his
claim in fact warranted under the circumstances. To remand
this case to the RO for consideration of the issue of whether
the veteran’s claim is well grounded would be pointless and,
in light of the law cited above, would not result in a
determination favorable to him. VAOPGPREC 16-92 (O.G.C.
Prec. 16-92); 57 Fed.Reg. 49,747 (1992).
As the foregoing explains the need for competent evidence the
Board views its discussion as sufficient to inform the
veteran of the elements necessary to complete his application
for a claim for service connection for residuals of a jaw
injury. See Robinette v. Brown, 8 Vet.App. 69, 77-78 (1995).
ORDER
The veteran’s claim for entitlement to service connection for
residuals of a jaw injury is denied.
BRUCE KANNEE
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
which appears on the face of this decision constitutes the
date of mailing and the copy of this decision which you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals.
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